Fred Schneider v. State ( 2015 )

ACCEPTED
03-14-00189-CR
4744958
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/2/2015 12:47:06 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00189-CR
IN THE FILED IN
3rd COURT OF APPEALS
THIRD COURT OF APPEALS AUSTIN, TEXAS
4/2/2015 12:47:06 PM
JEFFREY D. KYLE
Clerk
FRED ROBERT SCHNEIDER, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Williamson County
* * * * *
STATE’S RESPONSE BRIEF
* * * * *
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No.13803300
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
Bar I.D. No. 24053705
P.O. Box 13046
Austin, Texas 78711
512/463-1660 (Telephone)
512/463-5724 (Fax)
ORAL ARGUMENT REQUESTED
SUPPLEMENTAL LIST OF PARTIES
*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Response to Issue 1: Appellant’s blood alcohol content was
admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Response to Issue 2: There was no disputed issue of fact for the
jury to decide. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Response to Issue 3: The Ex Post Facto Clause does not apply to
enhancement provisions like 49.09.. . . . . . . . . 30
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ii
INDEX OF AUTHORITIES
Cases
State v. Anderson, 445 S.W.3d 895 (Tex. App.–Beaumont 2014, no pet.) . . . . . . 20
Bailey v. State, 03-09-00276-CR, 2010 Tex. App. LEXIS 4584
(Tex. App.–Austin June 18, 2010, pet. ref’d). . . . . . . . . . . . . . . . . . . . . 32, 33
Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008).. . . . . . . . . . . . . . . . . . 23
United States v. Biswell, 406 U.S. 311 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Bowman v. State, 05-13-01349-CR, 2015 Tex. App. LEXIS 1285
(Tex. App.–Dallas Feb. 10, 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
New York v. Burger, 482 U.S. 691 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Calder v. Bull, 3 U.S. 386, 390 (1798). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Carmell v. Texas, 529 U.S. 513 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Castillo v. State, 03-07-00546-CR, 2008 Tex. App. LEXIS 6225
(Tex. App.–Austin Aug. 14, 2008, no pet.). . . . . . . . . . . . . . . . . . . . . . 32, 33
Cheek v. United States, 498 U.S. 192 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Clay v. State, 391 S.W.3d 94 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . . . . . 14
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . 23
Cobb v. State, 85 S.W.3d 258 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . 31
Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . 6
Cole v. State, __S.W.3d__, 2014 Tex. App. LEXIS 13498
(Tex. App.–Texarkana Dec. 18, 2014, pet. filed). . . . . . . . . . . . . . . . . . 6, 7, 8
Conelly v. State, 451 S.W.3d 471 (Tex. App.–Houston [1st Dist.] 2014, no pet.). 32
iii
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011). . . . . . . . . . . . . 15
Douds v. State, 434 S.W.3d 842 (Tex. App.–Houston [14th Dist.] 2014)
(en banc) (pet. granted, argued March 18, 2015). . . . . . . . . . . . . . . . 7, 21, 28
Evans v. State, 14-13-00642-CR, 2015 Tex. App. LEXIS 1237 (Tex.
App.–Houston [14th Dist.] Feb. 10, 2015) (motion for rehearing filed).. . . 20
Forsyth v. State, 438 S.W.3d 216 (Tex. App.–Eastland 2014, pet. ref’d) .. . . . . . 20
Gallups v. State, 151 S.W.3d 196 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . 17
Gore v. State, 451 S.W.3d 182, 2014 Tex. App. LEXIS 12326
(Tex. App.–Houston [1st Dist.] 2014, pet. filed) . . . . . . . . . . . . . . . . . 8, 9, 10
Griffin v. Wisconsin, 483 U.S. 868 (1987) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Grimes v. State, 807 S.W.2d 582 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . 31
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . 5
Kentucky v. King, 131 S. Ct. 1849 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
Md. v. King, 133 S. Ct. 1958 (2013) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5
United States v. Knights, 534 U.S. 112 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Leal v. State, 452 S.W.3d 14 (Tex. App.–Houston [14th Dist.] 2014, pet. filed,
remanded). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). . . . . . . . . . . . 27, 28, 30
McDonald v. Massachusetts, 180 U.S. 311 (1901).. . . . . . . . . . . . . . . . . . . . . . . . 32
Missouri v. McNeely, 133 S. Ct. 1552 (2013).. . . . . . . . . . . . . . . . . . . . . . . . passim
Mills v. State, 296 S.W.3d 843 (Tex. App.–Austin 2009, pet. ref’d). . . . . . . . . . . 28
iv
Ornelas v. United States, 517 U.S. 690 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Riley v. California, 134 S. Ct. 2473 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Roaden v. Kentucky, 413 U.S. 496 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . 28
Samson v. California, 547 U.S. 843 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Saucedo v. State, 03-06-00305-CR, 2007 Tex. App. LEXIS 4292
(Tex. App.–Austin May 30, 2007, no pet.).. . . . . . . . . . . . . . . . . . . . . . 32, 33
Schmerber v. California, 384 U.S. 757 (1966). . . . . . . . . . . . . . . . . . . . . . . . 6, 9-10
Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001).. . . . . . . . . . . . . . . 31, 32, 33
Shaw v. State, 529 S.W.2d 75 (Tex. Crim. App. 1975). . . . . . . . . . . . . . . . . . . . . 32
Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) . . . . . . . . . . . . . . . . . . . . 4
Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . 22
Sutherland v. State, 436 S.W.3d 28 (Tex. App.–Amarillo 2014, pet. filed) . . . . . 21
Townsend v. State, 03-05-00766-CR, 2007 Tex. App. LEXIS 5940
(Tex. App.–Austin July 26, 2007, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . 32
State v. Villarreal, 2014 Tex. Crim. App. LEXIS 1898
(Tex. Crim. App. Nov. 26, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . 22
White v. State, 201 S.W.3d 233 (Tex. App.–Fort Worth 2006, pet. ref’d) . . . . . . 30
Statutes, Codes and Rules
TEX. CODE CRIM. PROC. art 14.03(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
v
TEX. CODE CRIM. PROC. art. 18.01(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TEX. CODE CRIM. PROC. art. 36.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
TEX. CODE CRIM. PROC. art. 38.23(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
TEX. PENAL CODE § 49.04(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
TEX. PENAL CODE § 49.09. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
TEX. R. APP. P. 44.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
TEX. TRANSP. CODE § 724.012(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
vi
No. 03-14-00189-CR
IN THE
THIRD COURT OF APPEALS
FRED ROBERT SCHNEIDER, Appellant
v.
THE STATE OF TEXAS, Appellee
* * * * *
STATE’S RESPONSE BRIEF
* * * * *
TO THE HONORABLE THIRD COURT OF APPEALS:
Comes now the State of Texas, by and through its State Prosecuting Attorney,
and respectfully presents to this Court its brief in the named cause.
STATEMENT REGARDING ORAL ARGUMENT
The State requests oral argument on the first issue. Respectfully, many of the
courts of appeals that have considered exigent circumstances post-McNeely1 have
missed the point. Oral argument will assist the Court to better guide practitioners and
judges in its jurisdiction.
1
Missouri v. McNeely, 133 S. Ct. 1552 (2013).
1
SUMMARY OF THE ARGUMENT
First, regardless of the resolution of Villarreal in the Court of Criminal
Appeals, the delay caused by appellant’s flight from the scene and escalation of the
situation, combined with the two hours it would take to secure a warrant once the
arrest was effectuated, made a warrantless blood draw reasonable. Second, appellant
was not entitled to his proposed article 38.23 instruction because it posed no question
of disputed fact; there was no evidence a warrant was obtained, and whether there
were exigent circumstances is a question of law. Third, the use of prior convictions
in an enhancement provision does not present any ex post facto issue because it does
nothing to make the present offense worse than it was at the time it was committed.
ARGUMENT
Response to Issue 1: Appellant’s blood alcohol content was admissible
The Court of Criminal Appeals held in State v. Villarreal that reliance on the
blood draw statute to secure blood without a warrant is unconstitutional, but the
propriety of that holding is presently being considered.2 Regardless of the outcome
of that case, this case presents exigent circumstances that made the warrantless blood
draw reasonable. Alternatively, overwhelming evidence of impairment and a defense
2
State v. Villarreal, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014)
(State’s motion for rehearing granted, submitted Mar. 18, 2015). See TEX . TRANSP . CODE §
724.012(b).
2
strategy of calling the BAC “meaningless” shows that any error in admitting that
evidence was harmless.
Villarreal
Appellant relies primarily on the Court of Criminal Appeals’ opinion in
Villarreal, which was recently resubmitted on the State’s motion for rehearing. This
Court has chosen to hold its cases dealing with the statute. A decision in Villarreal
will hopefully issue soon, and if the Court of Criminal Appeals holds that a
warrantless blood draw is reasonable under the circumstances then this issue is
resolved in the State’s favor. This Court is undoubtedly familiar with the arguments,
but the State will briefly summarize its position.
The ultimate touchstone of the Fourth Amendment is “reasonableness,” which
generally requires that law enforcement officials who search for evidence of criminal
wrongdoing obtain a warrant.3 While it cannot be argued that the circumstances set
out by the Legislature fit neatly within one of the currently recognized exceptions to
the warrant requirement, it has elements of each that, in aggregate, compel a finding
of reasonableness under the totality of the circumstances:
• The blood draw statute is part of a complex administrative scheme of licensing
and suspension that is not criminal in nature despite its overlap with DWI
3
Riley v. California, 134 S. Ct. 2473, 2482 (2014).
3
prosecutions.4
• Legitimate expectations of privacy are diminished by the fact of valid arrest
based on probable cause.5
• The discretion of officers is limited; an officer is required to obtain blood
under enumerated circumstances that include arrest based on probable cause,
and cannot otherwise do so without consent or a warrant.
• Those circumstances are reasonable for administrative purposes, i.e., tracking
repeat offenders and identifying the cause of accidents resulting in injury on
public roadways.
• For repeat offenders like appellant, a blood draw is further justified because his
familiarity with the process stemming from at least two other arrest and
prosecutions augments the established presumption that citizens are familiar
with the laws that govern them.6
4
See TEX . TRANSP . CODE §§ 724.032-042. Compare with New York v. Burger, 482 U.S. 691,
713-14 (1987) (junkyard regulatory warrantless inspection scheme, which may be conducted by
police, promotes the same goal as criminal laws by deterring auto theft); Mich. Dep’t of State Police
v. Sitz, 496 U.S. 444, 449-50, 453-55 (1990) (upholding checkpoint to discover drunk-drivers as
reasonable and noting that dispensing with individualized suspicion does not always require a non-
criminal law-enforcement purpose).
5
See Riley, 134 S. Ct. at 2485 (reduced privacy expectations by virtue of arrest); Maryland v.
King, 133 S. Ct. 1958, 1979 (2013) (“A brief intrusion of an arrestee’s person is subject to the Fourth
Amendment, but a swab of this nature does not increase the indignity already attendant to normal
incidents of arrest.”).
6
Cheek v. United States, 498 U.S. 192, 199 (1991) (“Based on the notion that the law is
definite and knowable, the common law presumed that every person knew the law. This
common-law rule has been applied by the Court in numerous cases construing criminal statutes.”);
see also United States v. Biswell, 406 U.S. 311, 315-16 (1972) (administrative search of firearms
business reasonable because owner was aware of statutory authorization and time, place, scope
limitations). Cf. Griffin v. Wisconsin, 483 U.S. 868, 873-80 (1987) (regulation authorizing
warrantless search of probationer’s home based on “reasonable grounds” that there is contraband);
United States v. Knights, 534 U.S. 112, 119-22 (2001) (search of probationer reasonable based on
a known and accepted cart blanche probation search condition and reasonable suspicion of
wrongdoing); Samson v. California, 547 U.S. 843, 852-56 (2006) (suspicionless search of parolee’s
(continued...)
4
• The reasonableness of the method is well-established,7 and the proposed
use—a search limited to intoxicants—is more limited than in other cases
upheld by the Supreme Court.8
• And, of course, while the dissipation of blood alcohol evidence is not an
exigency per se, it is an important factor in determining the lawfulness of a
warrantless search.9
Viewed as a whole, the circumstances required to satisfy the statute make a
warrantless blood draw reasonable.
Exigent circumstances
The preference for a warrant is excused when “the exigencies of the situation”
make the needs of law enforcement so compelling that a warrantless search is
objectively reasonable.10 One such exigency is the need to prevent the imminent
destruction of evidence.11 To determine whether a law enforcement officer faced an
emergency that justified acting without a warrant, courts look to the totality of
6
(...continued)
person reasonable based on a known and accepted cart blanche parole search condition).
7
See State v. Johnston, 336 S.W.3d 649, 659 (Tex. Crim. App. 2011) (holding that blood
draws are reasonable and noting that a small sample is taken).
8
Compare with King, 133 S. Ct. at 1967 (DNA swab taken at book-in used for identification
and unsolved crime comparison).
9
McNeely, 133 S. Ct. at 1568.
10
Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (citations omitted).
11
Id. (citations omitted).
5
circumstances.12 As it pertains to blood draws, “The relevant inquiry is whether,
given the facts and circumstances known to police at the time, it would be objectively
reasonable for an officer to conclude that taking the time necessary to obtain a
warrant before drawing a blood sample would significantly undermine the efficacy
of a blood-alcohol test.”13
McNeely
Nearly two years ago, the Supreme Court rejected the argument that “the
natural dissipation of alcohol in the bloodstream establishes a per se exigency that
suffices on its own to justify an exception to the warrant requirement for
nonconsensual blood testing in drunk-driving investigations.”14 Although McNeely
represents nothing more than the reaffirmation that, “Whether a warrantless blood test
of a drunk-driving suspect is reasonable must be determined case by case based on
the totality of the circumstances,”15 it has created much confusion in the courts of
appeals.
12
McNeely, 133 S. Ct. at 1559.
13
Cole v. State, __S.W.3d__, 2014 Tex. App. LEXIS 13498 at *14 (Tex. App.–Texarkana Dec.
18, 2014, pet. filed) (citing McNeely, 133 S.Ct. at 1561; Schmerber v. California, 384 U.S. 757, 770
(1966)); see also Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998) (“We apply an
objective standard of reasonableness in determining whether a warrantless search is justified, taking
into account the facts and circumstances known to the police at the time of the search.”).
14
McNeely, 133 S.Ct. at 1558.
15
Id. at 1563.
6
For example, at least two courts require that police face a “now or never”
situation, i.e., there is a substantial risk that the evidence will become permanently
unavailable if they do not act immediately in the absence of a warrant.16 This is the
scenario presented in the typical exigent circumstances case: if police do not
intervene, the evidence will be lost forever.17 McNeely acknowledged the “now or
never” language relied upon in Douds and Cole but cautioned that “[t]he context of
blood testing is different in critical respects from other destruction of evidence
cases.”18 On one hand, there is no mere “risk” that evidence will be lost. “[I]n every
case the law must be concerned that evidence is being destroyed”19 because “‘the
percentage of alcohol in the blood begins to diminish shortly after drinking stops, as
16
Douds v. State, 434 S.W.3d 842, 850 (Tex. App.–Houston [14th Dist.] 2014) (en banc) (pet.
granted, argued March 18, 2015) (“a search ‘without prior judicial evaluation’ is reasonable ‘[w]here
there are exigent circumstances in which police action literally must be now or never to preserve the
evidence of the crime.’”) (quoting Roaden v. Kentucky, 413 U.S. 496, 505 (1973)); see also Cole,
2014 Tex. App. LEXIS 13498 at *28 (“Assuming the same forty-minute delay in drawing his blood,
Cole’s blood could have been drawn pursuant to a warrant before 2:00 a.m., only an hour and forty
minutes after it was actually drawn. Therefore, this fails to reach the ‘now or never’ level
contemplated by exigent circumstances precedent.”).
17
See King, 131 S. Ct. at 1857 (“Destruction of evidence issues probably occur most frequently
in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them
down a drain.”).
18
McNeely, 133 S. Ct. at 1561.
19
Id. at 1568.
7
the body functions to eliminate it from the system.’”20 On the other hand, “BAC
evidence is lost gradually and relatively predictably,” making technological advances
that make getting a warrant easier more relevant than in the typical exigency case.21
This is why metabolization, on its own, is not “a sufficient basis for a warrantless
search everywhere and always.”22
But it has not become a non-issue, as the “important countervailing concerns”23
caused by delay have not disappeared post-McNeely. Again, some courts of appeals
have used McNeely’s “gradual and predictable” language in isolation to dismiss
delays of up to three hours based on the availability of retrograde extrapolation.24
The First Court did so despite accepting that a three hour delay would cause an
20
Id. at 1560 (quoting Schmerber, 384 U.S. at 770).
21
Id. at 1562-63 & n.6.
22
Id. at 1563 n.6.
23
Id. at 1563.
24
The First Court, for example, held:
Nothing else in the record explains why Officer McIntyre did not have time to get a warrant
before the evidence was destroyed, especially, when, as noted by the McNeely court, ‘BAC
evidence from a drunk-driving suspect naturally dissipates over time in a gradual and
relatively predictable manner.’ Even if McIntyre had to wait the maximum estimated three
hours for a warrant, it is likely that the BAC evidence would have nonetheless been available
in light of its ‘predictable manner’ of dissipation.
Gore v. State, 451 S.W.3d 182, 197 (Tex. App.–Houston [1st Dist.] 2014, pet. filed) (quoting
McNeely, 133 S. Ct. at 1561) (emphasis added in Gore); see also Cole, 2014 Tex. App. LEXIS
13498 at *28 (“the ‘now or never’ level contemplated by exigent circumstances precedent” was not
reached because the suspect’s blood could have been drawn pursuant to a warrant “only an hour and
forty minutes after it was actually drawn.”).
8
average drop in BAC of .06.25 That is a loss of three fourth’s of the evidence required
for a conviction. This conflicts with the plain language of McNeely: “While experts
can work backwards from the BAC at the time the sample was taken to determine the
BAC at the time of the alleged offense, longer intervals may raise questions about the
accuracy of the calculation.”26 And, “Regardless of the exact elimination rate, it is
sufficient for our purposes to note that because an individual’s alcohol level gradually
declines soon after he stops drinking, a significant delay in testing will negatively
affect the probative value of the results.”27
These post-McNeely holdings also conflict with the facts of Schmerber.
Schmerber was driving a car that struck a tree.28 The officer noticed signs of
intoxication at the scene and again at the hospital within two hours of the accident.29
He then arrested Schmerber and directed a doctor to take a blood sample.30 The
Supreme Court’s entire analysis is four sentences:
The officer in the present case, however, might reasonably have believed that
25
Gore, 451 S.W.3d at 198 n.6.
26
McNeely, 133 S. Ct. at 1563.
27
Id. at 1560-61.
28
Schmerber, 384 U.S. at 758 n.2.
29
Id. at 768-69.
30
Id. at 769, 758.
9
he was confronted with an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threatened “the destruction of evidence.” We
are told that the percentage of alcohol in the blood begins to diminish shortly
after drinking stops, as the body functions to eliminate it from the system.
Particularly in a case such as this, where time had to be taken to bring the
accused to a hospital and to investigate the scene of the accident, there was no
time to seek out a magistrate and secure a warrant. Given these special facts, we
conclude that the attempt to secure evidence of blood-alcohol content in this
case was an appropriate incident to petitioner’s arrest.31
Of course, it was not literally true that there was “no time to . . . secure a warrant.”
The Supreme Court merely recognized that any additional delay would reasonably
result in a constitutionally significant “destruction of evidence.” Any claim that a two
or three hour delay does not “negatively affect the probative value of the results” is
insupportable.
Perhaps in anticipation of this argument, the First Court held, “To accept
[assistant district attorney] Reed’s testimony that it usually takes two to three hours
to get a warrant as sufficient evidence of exigency in every DWI case would be to
create a per se exigency rule, which McNeely expressly prohibits.”32 This is an abuse
of McNeely’s “per se” language. McNeely does not say that no fact can, in
combination with the fact of dissipation, create an exigency. It says only that the fact
of dissipation on its own does not create an exigency. As Schmerber demonstrates,
31
Id. at 770-71 (citation omitted).
32
Gore, 451 S.W.3d at 197.
10
dissipation plus significant time equals exigency. What McNeely does remind us is
that the significance of delays diminishes as available technology progresses.33 But,
absent evidence of access to—and statutory authority to use34—technology that
makes obtaining warrants easier, or access to a magistrate at the jail 24/7, it is simply
incorrect to say that proof that a warrant would delay obtaining a blood sample an
additional two to three hours does not make a warrantless blood draw reasonable.
Nor is it proper to reject exigent circumstances based simply on the lack of a
record on every conceivable piece of relevant information. In response to the
McNeely dissent’s complaint “that officers in the field will be unable to apply the
traditional totality of the circumstances test in this context because they will not know
all of the relevant facts at the time of an arrest,” the majority responded:
But because “[t]he police are presumably familiar with the mechanics and time
involved in the warrant process in their particular jurisdiction,” we expect that
officers can make reasonable judgments about whether the warrant process
would produce unacceptable delay under the circumstances. Reviewing courts
in turn should assess those judgments “‘from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.’”35
Thus, as with Schmerber, the analysis is not that complex. Was it reasonable,
based on the facts known to the officer, to believe that the time it would take to obtain
33
McNeely, 133 S. Ct. at 1561-63.
34
See argument, p. 14.
35
McNeely, 133 S. Ct. at 1564 n.7 (citations omitted).
11
a warrant would result in “the destruction of evidence”? Although elimination is not
the only fact to be considered, it appears clear that any significant delay due to the
unavailability of a magistrate—taking into account available technology—will result
in a loss of evidence and make a warrantless blood draw reasonable. This delay
should be considered in light of the time that has already elapsed between the
apparent consumption of alcohol and the point at which an intoxication-based arrest
was made.
It is also why exigency is still the rule in most jurisdictions rather than the
exception. Yes, “some delay between the time of the arrest or accident and the time
of the test is inevitable regardless of whether police officers are required to obtain a
warrant[,]” and this reality undermines the argument for “a categorical exception to
the warrant requirement because BAC evidence ‘is actively being destroyed with
every minute that passes.’”36 And, of course, there might be “situation[s] in which the
warrant process will not significantly increase the delay before the blood test is
conducted.”37 But “exigent circumstances justifying a warrantless blood sample may
arise in the regular course of law enforcement due to delays from the warrant
36
Id. at 1561.
37
Id. (emphasis added).
12
application process.”38 “[T]he fact that a particular drunk-driving stop is ‘routine’ in
the sense that it does not involve ‘special facts,’ such as the need for the police to
attend to a car accident, does not mean a warrant is required.”39 “Other factors
present in an ordinary traffic stop, such as the procedures in place for obtaining a
warrant or the availability of a magistrate judge, may affect whether the police can
obtain a warrant in an expeditious way and therefore may establish an exigency that
permits a warrantless search.”40
Application
Appellant relies on the same “gradual and predictable” and “now or never”
language that the Supreme Court warned was not the sum of the analysis.41 Again,
the question is not whether, in hindsight, it might not have taken any longer to obtain
a warrant than it took for a warrantless search or seizure. Nor is it whether a warrant
could have been obtained; obtaining a warrant is rarely an impossibility and is often
done “easily.”42 Rather, the question is whether a reasonable officer would have
38
Id. at 1563 (emphasis added).
39
Id. at 1568 (citations omitted).
40
Id. (citations omitted). Again, it is the “anticipated delays in obtaining a warrant” that justify
the officer’s belief, not the actual delays in hindsight. Id. (emphasis added).
41
App. Br. at 21-22.
42
App. Br. at 23.
13
believed that the warrant process, easy or not, would produce an unacceptable delay
under the circumstances. The undisputed, basic circumstances surrounding blood
warrants in Williamson County satisfy this test under Schmerber and McNeely.
As McNeely acknowledged, “improvements in communications technology do
not guarantee that a magistrate judge will be available when an officer needs a
warrant after making a late-night arrest.”43 That is the case here, as there was no
magistrate at the jail that night44 and no technological developments like video
conferencing in this jurisdiction.45 As a result, it takes at least two hours to get a
warrant signed after hours in Williamson County.46 This is the same delay deemed
reasonable in Schmerber. The result should be the same in this case.
Even if it would have been reasonable to commit to a two hour delay had this
43
133 S. Ct. at 1562.
44
5 RR 53.
45
McNeely, 133 S. Ct. at 1562. Even the technological tools for obtaining a warrant the old-
fashioned way are somewhat lacking. For example, there is a patrol room near the booking desk
with computers containing forms that one can prepare for a judge, but “some of the computers are
fairly old” and printers may not be set up for them. 5 RR 89. “[I]t’s a headache.” 5 RR 89.
Additionally, until the Legislature amends or supplements TEX . CODE CRIM . PROC. article 18.01(b)
to specifically and comprehensively regulate the process of obtaining search warrants by telephonic
or other electronic means, “the question of whether the circumstances of an individual telephonic
warrant application will suffice to satisfy the solemnizing function of the oath requirement under
Article 18.01(b) will have to be resolved on a case-by-case basis.” Clay v. State, 391 S.W.3d 94,
103-04 (Tex. Crim. App. 2013).
46
5 RR 56; 7 RR 67 (2 to 3 hours in an emergency).
14
been a typical 15-20 minute DWI traffic stop,47 this was far from the typical case.
The facts available to Detective Waldon leading up to contact with appellant were as
follows:
• The 911 call put the hit-and-run at around 9:30 or 9:45 p.m.48
• Waldon arrived at the scene at 10:05, having no reason to suspect DWI
and following protocol for a hit-and-run.49
• Investigation led to appellant’s house, where Waldon arrived at 10:14
still believing this was a traffic matter.50
• When Ferrell, appellant’s girlfriend, answered the door, she appeared
upset and said appellant had a gun.51
The mention of a firearm immediately changed the nature of the situation.52
The situation was defused quickly and appellant came from the back of the house,
albeit without a firearm.53 Deputy Hammett proceeded to “clear” the residence of
firearms and people “[t]he second Detective Waldon placed the subject in
47
7 RR 88-89, 94.
48
6 RR 176; State’s 1 (CAD report); 5 RR 67. See Derichsweiler v. State, 348 S.W.3d 906,
914 (Tex. Crim. App. 2011) (information known to dispatcher is imputed to officer on the scene).
49
5 RR 20-21; 6 RR 175, 178.
50
6 RR 206, 244.
51
5 RR 23; 6 RR 146, 185.
52
5 RR 72.
53
5 RR 27; 6 RR 190-91.
15
handcuffs[,]”54 which was by 10:16.55 Waldon remained inside with appellant, who
had a cut across his nose.56 At some point, appellant told Waldon to just take him to
jail, but Waldon told him he did not know what he would be going for yet.57 After
Ferrell came back in, she and appellant began “a little bit of back and forth” after she
said appellant fell and he said she hit him.58 That, combined with the weapon and the
cut across appellant’s nose, led Waldon to take appellant outside to separate them on
suspicion of a “family violence situation.”59
Meanwhile, Hammett grew concerned when the first sweep of the house did
not reveal any weapons, so Ferrell guided him to them.60 After securing the weapons,
the investigation “had gotten so broad that [Hammett] didn’t have a clear
understanding of what [they] were investigating.”61 It was “dramatically different”
54
7 RR 82.
55
5 RR 29; 6 RR 246.
56
6 RR 192-93, 195.
57
6 RR 205.
58
5 RR 41; 6 RR 195, 203.
59
6 RR 195-96, 203.
60
7 RR 82-83.
61
7 RR 83.
16
from the way a DWI usually investigation unfolds.62
Once Waldon was able to speak with appellant, he believed appellant appeared
intoxicated.63 Appellant admitted he “hit that truck.”64 Waldon Mirandized him
because “it seemed more than likely that [appellant] would be arrested at that point.”65
Waldon could not release appellant’s hands to perform SFSTs at the scene due to
officer safety.66 Appellant was placed in a patrol car at 10:26 because it was secure,
allowing Waldon to finish sorting out the scene.67 Waldon was unsure of the offenses
for which he could arrest appellant without a warrant,68 but DWI and family violence
were two options.69 He spoke with Ferrell for 10 to 15 minutes and took pictures of
62
7 RR 83-84.
63
5 RR 33; 6 RR 202.
64
6 RR 204.
65
6 RR 204, 206.
66
6 RR 216-17; 7 RR 35, 95-96.
67
6 RR 205, 249.
68
7 RR 20-21.
69
In this case, he could have arrested appellant without a warrant for driving while intoxicated
under TEX . CODE CRIM . PROC. art 14.03(a)(1) because it is a breach of the peace and appellant’s
home would be a suspicious place under the circumstances. Gallups v. State, 151 S.W.3d 196, 201-
02 (Tex. Crim. App. 2004). Appellant also could have been arrested without a warrant on probable
cause of family violence. TEX . CODE CRIM . PROC. art 14.03(a)(4). Both offenses were raised by the
rapidly unfolding circumstance.
17
appellant’s truck.70 By 10:58, appellant was en route to the jail.71
If the two hours it would have taken to obtain a warrant that night once a DWI
arrest was made did not present an exigency, the additional time attributable entirely
to appellant did. Assume the accident took place at 9:45. If appellant remains at the
scene, the 911 call is made almost immediately and Waldon gets there within minutes
to make an uneventful DWI arrest. If appellant never grabs a gun, Waldon makes an
uneventful DWI arrest at his house 30 minutes after the accident. Instead, Waldon
could not even perform SFSTs because of the danger posed by an unrestrained,
intoxicated man with possible access to firearms. Appellant’s allegation that Ferrell
hit him further extended the investigation into domestic violence. All told, there is
an additional hour delay created entirely by appellant’s actions. Any reasonable
officer would conclude that a three-hour delay between the intoxicated driving and
a blood draw would risk the destruction of too much reliable, probative evidence.72
Appellant’s arguments look at the circumstances in piecemeal fashion instead
70
7 RR 22-23.
71
6 RR 215.
72
Waldon agreed that defendants are sobering up the entire time a warrant is being sought, 7
RR 63, and the DPS analyst explained the diminished utility of retrograde extrapolation. 5 RR 168-
70. A reasonable officer would also assume that the drinking took place before the driving while
intoxicated, adding an unknown amount of time to the dissipation of alcohol. In this case, the receipt
from the restaurant found during processing shows the tab was closed at 8:11. 5 RR 95; 6 RR 219;
7 RR 39; State’s Ex. 8 (admitted 6 RR 40).
18
of collectively. It is true that accident investigation, without more, does not create
exigent circumstances.73 The key phrase is “without more.” It cannot be overstated
that this was not even close to a typical accident investigation. The “more” in this
case is flight from the scene, the threat of a firearm, and reasonable suspicion of
domestic violence. Appellant also argues that there was “clearly” no exigency caused
by the threat of a firearm because that particular threat was ended in 12 minutes.74
But this 12-minute delay did not occur in a vacuum. The fact that precipitated the
protective sweep—an upset woman telling police someone inside had a gun—cast a
shadow over everything that took place afterwards.
Appellant also states that the number of available officers cuts against exigency
because any one of them could have obtained a warrant, especially after 11:00 p.m.75
But the circumstances created by appellant made Waldon the only officer with the
knowledge to get a warrant. Because of the gun, Waldon was the only officer to
speak with appellant at his house. Waldon observed appellant’s appearance and
heard his admission to hitting the truck. Moreover, no other officer could arrest
appellant for DWI without investigating to establish the house was a suspicious
73
App. Br. at 23 (citing Douds, 434 S.W.3d at 854).
74
App. Br. at 23.
75
App. Br. at 23.
19
place.76 So the number of officers who could have driven away with appellant for
DWI was irrelevant. A warrantless arrest could have been made for family violence,
but that required further investigation. Again, Waldon was in the best position to
continue that investigation: Ferrell made her alarming statement to him, and he was
the witness to their “back and forth.” Although the presence of a third officer allowed
Waldon to leave appellant in another officer’s vehicle to briefly interview Ferrell
once the house was cleared, that officer could do nothing until that investigation was
complete. The number of other officers in the county, or even on the scene, is
irrelevant under these facts.
There are post-McNeely cases in which the record did not show an exigency,
but they are all distinguishable.77 None come close to the unique facts presented in
76
Appellant made this an issue at trial through his questioning of Waldon and his request for
a jury instruction. 7 RR 20-21, 8 RR 9, 17-18; 1 CR 117.
77
See Leal v. State, 452 S.W.3d 14, 19, 24 (Tex. App.–Houston [14th Dist.] 2014, pet. filed,
remanded Mar. 25, 2015, for consideration of preservation of Fourth Amendment argument) (near
collision between suspect and officer immediately resulted in a DWI investigation and there was “no
evidence regarding what [the officer] knew about the time needed to obtain a warrant”); Evans v.
State, 14-13-00642-CR, 2015 Tex. App. LEXIS 1237 at *17 (Tex. App.–Houston [14th Dist.] Feb.
10, 2015) (motion for rehearing filed Feb. 24, 2015) (not designated for publication) (“the record
reflects that Trooper Robinson believed he had time to secure a warrant”); Bowman v. State,
05-13-01349-CR, 2015 Tex. App. LEXIS 1285 at *35 (Tex. App.–Dallas Feb. 10, 2015) (motion
for rehearing filed Feb.25, 2015) (not designated for publication) (“The record shows Hoya had
access to technology that enabled him to prepare a warrant application remotely using a form
document.”); State v. Anderson, 445 S.W.3d 895, 911 (Tex. App.–Beaumont 2014, no pet.) (“Indeed,
the evidence at the suppression hearing indicates that there was a judge available and on stand-by,
that there were other law enforcement officers and two assistant district attorneys on the scene, as
well as attorneys and staff at the courthouse who were available.”); Forsyth v. State, 438 S.W.3d
(continued...)
20
this case.
The overwhelming evidence and appellant’s trial strategy rendered any error harmless
Should the Court of Criminal Appeals affirm its opinion in Villarreal and this
Court find that exigent circumstances did not exist, the error in admitting the BAC
was harmless beyond a reasonable doubt.78 Viable considerations in determining
harm under Rule 44.2(a) include “the nature of the error (e.g., erroneous admission
or exclusion of evidence, objectionable jury argument, etc.), whether it was
emphasized by the State, the probable implications of the error, and the weight the
jury would likely have assigned to it in the course of its deliberations.”79 “But they
are not exclusive considerations in any particular case; many other considerations
may logically serve to inform a proper harm analysis in a given case.”80 “While the
most significant concern must be the error and its effects, the presence of
77
(...continued)
216, 219 (Tex. App.–Eastland 2014, pet. ref’d) (“the trial court found that Officer McDaniel did not
make an attempt to obtain a warrant even though the officer was aware that there were magistrates
available twenty-four hours a day at the central booking facility located about the same distance
away from the stop as the hospital.”); Sutherland v. State, 436 S.W.3d 28, 40-41 (Tex.
App.–Amarillo 2014, pet. filed) (“A magistrate is available twenty-four hours a day, every day. . .
. Likewise, a phlebotomist is always available, either mere feet down the hall from the magistrate
on at least five days of the week or on call at any other time.”); Douds, 434 S.W.3d at 855 (there was
“nothing whatsoever in the record regarding what Officer Tran knew about the time needed to obtain
a warrant”).
78
See TEX . R. APP . P. 44.2(a).
79
Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).
80
Id.
21
overwhelming evidence supporting the finding in question can be a factor in the
evaluation of harmless error.”81 “Stated in an interrogatory context, a reviewing court
asks if there was a reasonable possibility that the error, either alone or in context,
moved the jury from a state of nonpersuasion to one of persuasion as to the issue in
question.”82
In this case, there is no reasonable probability that the erroneous admission of
BAC evidence “moved the jury from a state of nonpersuasion to one of persuasion.”
The jury was charged with both theories of intoxication,83 and there was
overwhelming evidence of appellant’s drunkenness. Appellant drank approximately
seven 22 oz. beers between 5:00 or 5:3084 and when the waitress noticed he was
falling asleep, yanked his beer, and started serving him rolls and water.85 She was
concerned about him and asked his friend, whom she knew, to text her when
appellant got home.86 She was right to be worried; appellant hit a parked truck going
81
Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000) (citations omitted).
82
Id. (citations omitted).
83
1 CR 96-97. Unlike prosecution under TEX . PENAL CODE § 49.04(d), the actual BAC was
not an element of the offense.
84
6 RR 53-54, 70, 73.
85
6 RR 55-56.
86
6 RR 59, 75.
22
less than 10 miles per hour87 on his own street. He fled, which is evidence of
consciousness of guilt.88 When he got home, he was argumentative with his wife, told
her he did not want to go to jail, and grabbed a gun.89 Appellant fell and cut his nose
because he could not keep his balance.90 Detective Waldon described his slow,
slurred speech, his glassy eyes, the odor of alcohol, and his unsteady and lethargic
nature.91 Appellant eventually refused SFSTs, which is also evidence of guilt.92
Although the State mentioned the BAC in its closing arguments,93 it spent the
vast majority of its time on appellant’s obvious impairment. Its rebuttal was
especially forceful. The prosecutor recounted the ways in which appellant’s actions
evinced loss of mental faculties: the math mistake on the restaurant bill, the poor
judgment exercised in driving despite having a ride available, his apparent suicidal
thoughts, being argumentative with his wife, his lack of responsiveness to police
87
6 RR 86.
88
Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007).
89
6 RR 140-41.
90
6 RR 195, 202.
91
6 RR 202.
92
See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (“Evidence of the
appellant’s refusal to submit to a breath test is relevant for precisely the reason that the trial court
identified in the contested jury instruction, namely, that it tends to show a consciousness of guilt on
his part.”).
93
8 RR 51-52, 57, 82-83.
23
commands, and his inability to answer questions consistently.94 “And really, we
could stop here, and I could ask you to find him guilty beyond a reasonable doubt
because I don’t have to show that he lost his physical faculties or that he was .08 or
more.”95
But she showed them anyway: appellant was slumped over at the restaurant,
he drove into a parked vehicle, he fell over and cut his nose, he had trouble standing,
he had slurred speech and glassy eyes, and he was lethargic.96 She briefly mentioned
the BAC and defended its results,97 but then went back to how “[e]veryone that (sic)
came in contact with the defendant that night said he was intoxicated[,]” including
his friend, a waitress with no interest in the outcome of the case, and his girlfriend.98
She recounted the sheer volume of alcohol he drank, and reminded the jury that his
words and actions after the accident show a cover up.99 Finally, she established the
time line to show that he was intoxicated at the time of the accident.100
94
8 RR 78-80.
95
8 RR 80.
96
8 RR 81-82.
97
8 RR 82-83.
98
8 RR 83-84.
99
8 RR 84-85.
100
8 RR 85-86.
24
Not only did defense counsel not contest appellant’s intoxication, they argued
that BAC was irrelevant. “[T]he key this case,” the defense argued, was the “wide
open” “window” between the time appellant closed out his tab and when 911 was
called.101 “The reason that’s so important, and something y’all should focus on when
you’re talking in the back, is because that is the opportunity that [appellant] had to
go home and drink.”102 He then described the absence of direct evidence on what he
called “this extended period of time when [appellant] is home drinking beer.”103 “And
. . . the reason that that’s so terribly important in this case, is it means that the blood
evidence . . . is meaningless.”104 He argued that the lack of evidence establishing the
timing of appellant’s drinking made Waldon’s observations irrelevant, as well.105
Defense counsel questioned the value of the testimony of appellant’s friend and the
waitress, and cast vague aspersions at the quality of investigation and DPS’s
procedures,106 but never strayed far from his argument that “the blood is really not a
portion of the evidence . . . that you should really consider because it happened after
101
8 RR 59.
102
8 RR 59.
103
8 RR 60-62.
104
8 RR 62.
105
8 RR 63.
106
8 RR 64-69.
25
he drank [at home].”107 “[A]gain, to reiterate the focus that we ask you to have in this
case, is focus on that window. Focus on that period of time when [appellant] was
drinking at home.”108
Defense co-counsel continued that line of argument.109 “You don’t even know
the time he was driving; how could you know whether he was intoxicated at the time
of driving?”110 He then explained at length how reasonable it was for someone in
appellant’s position, and with his history, to get home and then get drunk.111
Conclusion
Regardless of whether section 724.012(b) constitutionally authorized the
warrantless blood draw, the facts of this case present an exigency that made it
reasonable. And, as it turns out, the BAC was unnecessary because the evidence of
appellant’s intoxication was not only overwhelming but undisputed, as his strategy
was to attack its timing instead. This point of error should be overruled.
107
8 RR 67.
108
8 RR 69.
109
8 RR 71-72.
110
8 RR 72.
111
8 RR 73-75.
26
Response to Issue 2: There was no disputed issue of fact for the jury to decide
Article 38.23 requires a trial court to instruct the jury that it shall disregard any
evidence obtained in violation of the law. But this requirement arises only when
there is a disputed issue of material fact, and appellant did not present one.112
Law
In any case where the legal evidence raises an issue as to whether evidence was
obtained in violation of the law, the jury shall be instructed that if it believes, or has
a reasonable doubt, that the evidence was so obtained it shall disregard it.113 There
are three requirements.
First, the issue raised must be one of fact.114 This requirement is based both on
law and practicality. “The jury decides facts; the judge decides the application of the
law to those facts.”115 Moreover, the standards used to determine Fourth Amendment
questions are “fluid concepts that take their substantive content from the particular
112
As a threshold matter, the existence of a warrant or exigent circumstances is material only
if the statutory blood draw was unconstitutional and the exclusionary remedy applies.
113
TEX . CODE CRIM . PROC. art. 38.23(a).
114
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).
115
Id. at 511 (citing TEX . CODE CRIM . PROC. art. 36.13 (“Unless otherwise provided in this
Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and
be governed thereby.”)).
27
contexts in which the standards are being assessed.”116 “The jury, however, is not an
expert on legal terms of art or the vagaries of the Fourth Amendment[,]” and asking
them to determine probable cause or exigent circumstances “would require a lengthy
course on Fourth Amendment law.”117
Second, the evidence on that fact must be affirmatively contested. Where the
issue raised by the evidence at trial does not involve controverted historical facts, but
only the proper application of the law to undisputed facts, that issue is properly left
to the determination of the trial court as a question of law.118 Such is the case with
Fourth Amendment rulings on undisputed facts.119
Third, the disputed fact must be “material,” i.e., “an essential one in deciding
the lawfulness of the challenged conduct.”120 “[I]f other facts, not in dispute, are
sufficient to support the lawfulness of the challenged conduct, then the disputed fact
issue is not submitted to the jury because it is not material to the ultimate
116
Ornelas v. United States, 517 U.S. 690, 696 (1996).
117
Madden, 242 S.W.3d at 511.
118
Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012); Madden, 242 S.W.3d at
510.
119
See, e.g., Mills v. State, 296 S.W.3d 843, 845 (Tex. App.–Austin 2009, pet. ref’d) (“Whether
reasonable suspicion is present is a question of law for the trial court when there is no dispute
concerning the existence of the underlying historical facts from which that determination is made.”);
Douds, 434 S.W.3d at 855 (“Whether those facts meet the legal standard of exigent circumstances
is a legal question that we review de novo.”).
120
Madden, 242 S.W.3d at 510-11.
28
admissibility of the evidence.”121
Application
Appellant asked the trial court to submit the following instruction:
If you believe, or have a reasonable doubt thereof, that the Defendant’s blood
was drawn without a warrant or exigent circumstances then you shall disregard
any evidence obtained as a result of that blood draw.122
This question presents no disputed issues of fact for the jury to consider. “It is
undisputed that Appellant refused consent to the blood draw and that a warrant was
not obtained in this case.”123 Likewise, appellant makes no argument that any other
facts are in dispute. Rather, his argument that there were no exigent circumstances
is based entirely on the facts as told by the officers involved and the testimony of
present and former prosecutors, which was consistent.124 The chronology,
explanation for any delays, reasons for the officers’ actions, and the time it would
have taken to obtain a warrant are virtually undisputed. The requested instruction is
what it appears to be—a request for the jury to make a legal determination based on
121
Id. at 510.
122
1 CR 117 (Instruction (4)).
123
App. Br. at 14.
124
App. Br. at 22-26.
29
undisputed facts.125 This is not permitted.
Conclusion
Appellant was not entitled to his requested question because he did not seek
the resolution of a disputed factual issue. The trial court was correct, and this point
of error should be overruled.
Response to Issue 3: The Ex Post Facto Clause does not apply to
enhancement provisions like 49.09
In his final point of error, appellant argues that the use of his prior DWI
convictions to increase his punishment was impermissible because of the version of
section 49.09 in effect at the time of those convictions.126 Section 49.09 is not, nor
has it ever been, a substantive offense or a promise that any convictions would not
be used for any purpose in the future. As such, the Ex Post Facto Clause is
inapplicable.
The Ex Post Facto Clause prohibits four types of laws:
1st. Every law that makes an action done before the passing of the law, and
which was innocent when done, criminal; and punishes such action. 2d. Every
law that aggravates a crime, or makes it greater than it was, when committed.
125
Cf. Madden, 242 S.W.3d at 512 (“What appellant wanted was a jury instruction on whether
the totality of facts that Officer Lily listed constituted ‘reasonable suspicion’ under the Fourth
Amendment.”); White v. State, 201 S.W.3d 233, 248-49 (Tex. App.–Fort Worth 2006, pet. ref’d)
(“There was no dispute, however, as to the facts upon which the exigent circumstances were
determined.”).
126
TEX . PENAL CODE § 49.09.
30
3d. Every law that changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed. 4th. Every law that alters
the legal rules of evidence, and receives less, or different, testimony, than the
law required at the time of the commission of the offence, in order to convict the
offender.127
“[T]he plain and obvious meaning and intention of the prohibition is this; that the
Legislatures of the several states, shall not pass laws, after a fact done by a subject,
or citizen, which shall have relation to such fact, and shall punish him for having
done it.”128
Application
Appellant is apparently relying on the fourth prohibition.129 Regardless of the
prohibition upon which he relies, a subsequent change in applicable enhancement
provisions is not an ex post facto violation. “Both the United States Supreme Court
and [the Court of Criminal Appeals] have addressed the issue of prior crimes used to
127
Carmell v. Texas, 529 U.S. 513, 522 (2000) (quoting Calder v. Bull, 3 U.S. 386, 390, 1 L.
Ed. 648 (1798)). Appellant’s complaint is based on the Texas Constitution. The Court of Criminal
Appeals has adopted the Supreme Court’s definition of “ex post facto” in interpreting the same term
found in Article I, Section 16 of the Texas Constitution, Grimes v. State, 807 S.W.2d 582, 586 (Tex.
Crim. App. 1991), but has more recently only assumed both clauses are coextensive. Scott v. State,
55 S.W.3d 593, 595 n.2 (Tex. Crim. App. 2001). Because appellant “points to nothing unique in
Texas history, law, or jurisprudence which would require, or even suggest a basis for, Texas courts
to deviate from Supreme Court precedent on this issue[,]” Cobb v. State, 85 S.W.3d 258, 267 (Tex.
Crim. App. 2002), they will be treated interchangeably.
128
Calder, 3 U.S. at 390.
129
App. Br. at 30 (citing only the fourth), 32 (“There is certainly a difference in the proof
required between the first statute and the second.”).
31
enhance punishment and have declined to find an ex post facto violation.”130 “The
allegation of previous convictions is not a distinct charge of crimes, but . . . goes to
the punishment only. The statute, imposing a punishment on none but future crimes,
is not ex post facto.”131
Not only has this broad issue been decided against appellant, numerous courts
of appeals have rejected an identical claim.132 In fact, this Court has four times held
that changes to the DWI enhancement provision that affect the availability of prior
convictions for enhancement purposes in the future do not violate the constitutional
prohibition on ex post facto laws.133 And, although appellant does not cite Scott or
analogize the version of 49.09 in effect at the time of his convictions to “the existence
in the prior statute of an explicit limitation on the collateral consequences of deferred
130
Scott, 55 S.W.3d at 597 (citing McDonald v. Massachusetts, 180 U.S. 311 (1901), and Shaw
v. State, 529 S.W.2d 75, 76 (Tex. Crim. App. 1975)).
131
McDonald, 180 U.S. at 313.
132
Conelly v. State, 451 S.W.3d 471, 478 (Tex. App.–Houston [1st Dist.] 2014, no pet.)
(collecting cases from seven other courts).
133
Bailey v. State, 03-09-00276-CR, 2010 Tex. App. LEXIS 4584 at *18 (Tex. App.–Austin
June 18, 2010, pet. ref’d) (not designated for publication); see also Castillo v. State,
03-07-00546-CR, 2008 Tex. App. LEXIS 6225 at *2 (Tex. App.–Austin Aug. 14, 2008, no pet.) (not
designated for publication); Townsend v. State, 03-05-00766-CR, 2007 Tex. App. LEXIS 5940 at
*1-2 (Tex. App.–Austin July 26, 2007, pet. ref’d) (not designated for publication); Saucedo v. State,
03-06-00305-CR, 2007 Tex. App. LEXIS 4292 at *10 (Tex. App.–Austin May 30, 2007, no pet.)
(not designated for publication).
32
adjudication[,]”134 this Court has made it clear that the ten-year time limitation on the
use of prior DWI convictions in the previous version of section 49.09 was not an
explicit guarantee that those convictions could not be used in the future, but only a
restriction on what prior convictions could be used to enhance a DWI offense at that
time.135
Conclusion
As this Court has already held, nothing about the use of an enhancement
scheme in place at the time of the commission of a new offense makes the use of prior
convictions an ex post facto violation. This point of error should be overruled.
PRAYER FOR RELIEF
The State of Texas prays that appellant’s conviction be affirmed.
Respectfully submitted,
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
Bar I.D. No. 24053705
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)
134
See Scott, 55 S.W.3d at 597.
135
Bailey, 2010 Tex. App. LEXIS 4584 at *18; Castillo, 2008 Tex. App. LEXIS 6225 at *2;
Saucedo, 2007 Tex. App. LEXIS 4292 at *10.
33
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool this
document contains 9,242 words.
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 2nd day of April, 2015, the State’s
Supplemental Brief on the Merits has been e-filed with the Court and served
electronically to the following:
Lauren McLeod
Assistant District Attorney
Williamson County District Attorney’s Office
405 M.L.K. Street, Suite 265
Georgetown, Texas 78626
lmcleod@wilco.org
Kristen Jernigan
Attorney at Law
207 S. Austin Ave.
Georgetown, Texas 78626
Kristen@txcrimapp.com
/s/ John R. Messinger
JOHN R. MESSINGER
Assistant State Prosecuting Attorney
34